Rights, Registries & Remedies An Analysis of Responses to the Copyright Office Notice of Inquiry...
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Rights, Registries & RemediesAn Analysis of Responses to the
Copyright Office Notice of Inquiry
Regarding Orphan Works
Denise Troll CoveyPrincipal Librarian for Special Projects
Carnegie Mellon – October 2005
Change
• Technology has changed the economics of how we can grow culture & create knowledge– Opportunity for unprecedented creativity
• Copyright law should change in a way that both respects © owners & leverages this opportunity– Law is complex, vague, & threatening
• 89 percent of librarians agree: copyright is one of the major challenges to building the digital library
Copyright Office Notice of Inquiry
• Study the problem of orphan works– Tentative definition: copyright owner can’t be found
– Does law impose “inappropriate burdens” on users?
– Are orphan works “being needlessly removed from access & their dissemination inhibited”?
Notice of Inquiry posted to the Federal Register January 26Initial comments due March 25 – Reply comments due May 9
Public hearings July – AugustReport due by the end of the year
Responses & Public Hearings
• 721 initial comments & 146 reply comments
• Public hearings– Washington DC (38) & Berkeley, CA (29)
– Topics of discussion
• Identity of orphan works & use of registries
• Consequences of an orphan works designation
• Reclaiming orphan works
• International considerations
Contours
0%
25%
50%
75%
100%
Initialcomments
Replycomments
Experience
No
Yes
NIMBY
How extensive is the problem?
Should something be done?
Random Sample Initial Comments
Demographics
0
5
10
15
20
25
30
35
No Yes NIMBY
Art
Photography
Authors
Film
Music
Other
Cultural heritage
One to One
0
200
400
600
800
1000
1200
1400
1600
1800
No Yes NIMBY
One to Many
0
5
10
15
20
25
30
35
Washington DC Berkeley, CA
Art
Photography
Authors
Film
Music
Publisher
Other copyright
Other
Cultural heritage
Public Hearing Demographics
One to OneDoes not include Copyright Office
2 days
1 day
Criteria of viable solution drive definition• Categorical approaches
– Default licensing (Creative Commons)
– Exemptions for cultural heritage
Reactions & Interactions
Criteria of viable definition drive solution• Case–by–case approaches
– Compulsory licensing
– Reasonable effort accommodation
“Overloading the boat?”
Identity of Orphan Works
Case–by–case Hybrids Categorical
• © owner cannot be identified• © owner cannot be found• © owner does not respond• © owner uncertain of ownership
– Grants or denies permission anyway
Assumptions
• If © owner cannot be found or does not respond– Can we assume owner abandoned the work?
• Yes• No – might want to be found
– User might not have conducted a sufficient search
• No – might choose not to be found or to respond– Is this a legitimate exercise of © ?
– Can we assume owner wants to be paid for use?• Yes – compensation is the purpose of © • No – permission is often given for free
Case–by–Case Reasonable Effort
• Does reasonableness vary based on– Type of use? Amount of work used?– Type, publication status, or age of work?– User’s skill & resources?
• Difficulty of developing sector guidelines
• Uncertain defense of infringement – Level of risk contingent on remedies– Self–censorship & gatekeeping
• Cost & risk prohibitive for large projects
Identity of Orphan Works
• Meet certain threshold requirements = orphan – Age of work?
– Print status?
– Non–profit use only?
– Registration to opt out?
Case–by–case Hybrids Categorical
“Don’t embroider the existing situation.
Do something to benefit the citizenry.”
Exemptions & Default Licensing
• Threshold requirements are contentious– Age or print status of work?
• Difficult to determine
– Non–profit use only? • Basis for disallowing for–profit use
– Registration to opt out of orphan works regime?• Burden on © owner• International issue of formalities
– © owner loses control & adequate compensation• International issue of full enjoyment & exercise• Free use or low–fee use
0
1,000,000
2,000,000
3,000,000
4,000,000
5,000,000
6,000,000
1923-1929
1930-1939
1940-1949
1950-1959
1960-1969
1970-1979
1980-1989
1990-1999
Books published in English in the United States (WorldCat)Books for which copyright owner cannot be foundBooks for which copyright owner does not respondBooks out-of-print
Estimates based on results of random sample feasibility studyconducted at Carnegie Mellon
Orphan Designation Questions
• To what does an orphan designation apply? – The work – exemptions & default licensing– The use – reasonable effort accommodation
• How long does an orphan designation endure?– Until the © owner steps up or claims infringement– In perpetuity
• What use does an orphan designation enable?– A particular use by a particular user– Any use by any user
– Other
Register Works & Ownership
• Voluntary / mandatory = international issue of formalities
• Consequences of NOT registering
– Incentive for user to check registry
• Default licensing = orphan
• Reasonable effort = keep looking
– Incentive for © owner to register
• Limited remedies = currently not working
• Burden on © owner
• Benefit preservation, access, & use
Register Searches & Uses
• Voluntary / mandatory
• Accuracy, scope, & ease of use / piggybacking
• Consequences of registering
– Incentive for user to register
• Reasonable effort approach = helpful in litigation
– Incentive for © owner to check registry
• Find users & deny or grant permission (compensation)
• Burden on user & © owner
• No benefit for preservation, access, & use
Contours of Consequences
72%
90%
0% 25% 50% 75% 100%
Initialcomments
Replycomments
No
Limited remedies
Public domain
No change Limited remedies Public domain
Comments on Solutions
0% 25% 50% 75% 100%
Initialcomments
Replycomments
Public domain
Simple solution advice
Detailed solution advice
38% with analysis
19% with analysis
Reclaiming: How Limit Remedies?
• Different remedies for different users & uses?– Take–down option for non–profit online access?
– No injunctions for other users & uses?
• Compensating the © owner – Issues with reasonable effort approach
• Who proves unreasonableness?
• No attorney fees? No statutory damages?
• Cap? Reasonable royalty? Who determines fee? How?
• How budget for large projects?
– Issues with default license approach• Default fee could be too low – incentive to register?
To be fair, the solution must
• Provide incentive to recognize the value
of using or making orphan works available
• Provide incentive for © owners to become locatable
• Recognize that users have rights & invest time
& money in pursuing permission & using works
• Recognize that © owners can appreciate use
& free ride on users’ creation of
markets
To succeed, the solution must
• Be cheap & easy– Reasonable effort is expensive & hard
• Most difficult to implement• Least likely to solve the problem• Seems to have the most support
– Exemptions & default licensing are cheap & easy• Easiest to implement• Exemptions will solve some aspects of the problem
& seem to have some support• Default licensing could solve the entire problem,
but seems to have little support
Assumptions
• All © owners want to negotiate permission & to be paid for each use of their work
• Current © term & permission practice are appropriate for all © works
Permission is often given for free
Increasing use of Creative Commons licenses September 29, 2004 – Use of CC licensing has increased
by 50% every fiscal quarter for the past year. (> 4 million
sites)
Summer 2005 – 53 million CC licenses & Yahoo CC search
Thank you!Copyrighted works
Orphan works used
Copyright owners surface
“Upside down pyramid
on a funnel”
“If many chickens come home to roost, the solution was poorly designed.”
Additional slides
Issues from comments & public hearings
Discussion demographics from public hearings(percentage of participants engaged in conversation)
Fundamental Differences
• Purpose of copyright– Encourage creation by compensating © owners
– Encourage creation & use
• Policy goal for orphan works– Enable preservation, access, & use
• At least non–profit cultural custodianship & personal use
– Help users locate © owners & ask permission• Short of that, approximate reasonable bargain
– Enable © owners to signal what they want
– Restore balance
What Can or Must the User Do?
• Register search, use, or intent to use? – Burden & loss of competitive advantage
• Disclose use of orphan work? – Invite false claims of © ownership
• Attribute © ownership? – Accuracy (often only presumption of ownership)
• Pay prior to use? Who determines fee? How? – Unfair for real orphan & public domain works
– Could be cheaper than reasonable search
– Permission often given for free
– Does not scale for large projects
Discussion Demographics
0%
25%
50%
75%
100%
DC CA DC CA
Art
Photography
Authors
Film
Music
Publisher
Other copyright
Other
Cultural heritage
Not speaking
Identityof orphan works
Use of registries
Discussion Demographics
0%
25%
50%
75%
100%
DC CA DC CA
Art
Photography
Authors
Film
Music
Publisher
Other copyright
Other
Cultural heritage
Not speaking
Consequencesof orphan identity
Reclaiming ownership
• International issues– Compliance
• Formalities• Enjoyment & exercise of ©
– Solution must apply to foreign works
• Ownership often unknown
• Global relationships
– Economic / moral views
– Market practice can differ from law
– U.S. law applies only in the U.S.
Discussion Demographics
0%
25%
50%
75%
100%
DC CA
Art
Photography
Authors
Film
Music
Publisher
Other copyright
Other
Cultural heritage
Not speaking